President’s Actions Defy Both the Law and Recommendations of His Own Executive Order-Authorized Panel

WASHINGTON, D.C. â€“ U.S. Senator Mark Kirk, along with Senators Orrin Hatch (R-Utah), John Cornyn (R-Texas), Pat Roberts (R-Kan.), John Boozman (R-Ark.), John Barrasso (R-Wyo.), Ted Cruz (R-Texas), Mike Johanns (R-Neb.), Mike Enzi (R-Wyo.), Jerry Moran (R-Kan.) and Marco Rubio (R-Fla.) sent a letter to President Obama expressing their strong concern regarding the release of five high value prisoners from Guantanamo Bay in exchange for Sgt. Bowe Bergdahl. This release, the Senators wrote, defies Section 1035 of the National Defense Authorization Act (NDAA) and the recommendationsÂ of aÂ panel of expertsÂ established by President Obama’s Executive Order 13492.

The Senators also expressed concern with the remaining 149 Guantanamo Detainees, and requested that none of these prisoners be released until further notice and a full investigation of the exchange is conducted.

We write to express ourÂ strongÂ concern with your decision to release five high value prisoners from Guantanamo Bayâ€“ defying both Section 1035 of the Fiscal Year 2014 (FY14) National Defense Authorization Act (NDAA) and the recommendations of at least one panel of experts established by your own executive order.

On January 27, 2009, you issued Executive Order 13492, whichÂ describedÂ a process for a â€œprompt and thorough review of the factual and legal bases for the continued detention of all individuals currently held at Guantanamo.â€ This executive order established the Guantanamo Review Task Force, an inter-agency panel chaired by the Attorney General. Members of the task force included the Secretaries of Defense, State, and Homeland Security; Director of National Intelligence; and the Chairman of the Joint Chiefs of Staff.

The final disposition of the review was reported on January 2010 and recommended thatÂ 48Â detainees, including the five individuals recently released in exchange for Sgt. Bowe Bergdahl, warranted continued detention under the 2001 Authorization for Use of Military Force. No publicly available decisions of subsequent review boards, including the Periodic Review Board established by your Executive Order 13567, indicate that the assessment of these five individuals haschanged.Â The Wall Street Journal reported on June 10, 2014 that the intelligence community believes at least four of the five detainees would or were likely to rejoin the fight in Afghanistan. It is deeply concerning that in releasing these individuals, you overrode the recommendations of at least one panel of experts that you called on to guide national security decision-making.

On December 19, 2013, the Senate passed the FY14 NDAA and you signed it into law seven days later. As you know, this legislation included a 30-day congressional notification requirement for detainees transferred from Guantanamo Bay to foreign countries. This law was not followed ahead of the transfer of Khair Ulla Said Wali Khairkhwa, Mullah Mohammad Fazl, Mullah Norullah Noori, Abdul Haq Wasiq, and Mohammad Nabi Omari.

In your decision to release these individuals, we are further concerned about the increasing recidivism rate among Guantanamo detainees. According to the Director of National Intelligence, an additional four former Guantanamo detainees were confirmed of rejoining the fight between July 2013 and January 2014, raising the combined suspected and confirmed recidivism rate to 29%. On June 16, 2014, Spanish authorities detained Lahcen Ikassriena, former Guantanamo detainee, who is believed to have led a recruitment cell for the Islamic State of Iraq and al-Sham, further raising concern about the actions of former detainees.

Contradictory to your own advisory committee, and without observance of Public Law No. 113-66, five senior Taliban leaders were released and many will likely return to the battlefield. Â None of the remaining 149 detainees should be released without a fullÂ investigationÂ of the process by which the five detainees were released outside of the legal process.

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